Lawyers join investigators to try to find cause of TWA crash

Federal investigators are not the only ones hunting for the cause of the crash of Trans World Airlines Flight 800.

At a desolate airplane graveyard in California's Mojave Desert, Peter Jorgenson, a private investigator for a Manhattan lawyer, Lee S. Kreindler, has spent days crawling around the belly of a Boeing 747. His mission is to find clues that will strengthen the 20 lawsuits that Kreindler has filed against TWA and Boeing on behalf of the families of some of the 230 passengers killed in the Flight 800 disaster.

Government officials have not determined whether a bomb, missile or mechanical failure caused Flight 800 to explode on July 17 off the Long Island coastline. But the legal scramble to assign blame and assess liability for the crash began in October and has gained momentum in recent weeks. Already, plaintiffs' lawyers have filedat least 23 multimillion- dollar lawsuits against Boeing and TWA and more are expected soon. In all, the lawsuits seek compensatory and punitive damages of more than $1 billion. But in the process, plaintiffs' lawyers are finding themselves at odds with one another over whether they should wait to file such claims until government investigators determine the accident's likely cause. At least one suit has also been filed against a California company cleared by federal officials of any involvement in the disaster. And the victims' families are also finding themselves in a legal and financial quandary. "I didn't see there was any real need to file against Boeing and TWA until we had a definite cause," said Aurelie Becker of St.Petersburg, Fla., whose daughter died in the crash. "To me, it is just better to wait." It is not unusual for plaintiffs' lawyers to sue airlines or manufacturers implicated in a crash long before government investigators reach their conclusion. While the National Transportation Safety Board requires a high level of certainty in determining an accident's likely cause, a civil court can hold a defendant liable based on a lesser standard, the preponderance of evidence. "There are lots of accidents that go to trial where we don't know the precise cause," said Robert Alpert, chief executive of International Claims & Insurance Management, a company in Chapel Hill, N.C., that handles claims arising from airplane cases. Still, the mysteries surrounding the cause of the crash of Flight 800 have clouded the legal picture. Most of the lawsuits filed by Kreindler and others have said that a fuel pump in a near-empty center fuel tank malfunctioned and sparked, igniting the volatile fuel vapors that caused the plane to explode. This is one of the theories of investigators, but recently they said that a more likely possibility was a spark induced by static electricity on a fuel pipe in the center tank. At the same time, however, Kreindler and other lawyers have hedged their theory with the alternative claim in the same lawsuits that the explosion aboard the plane was caused by a bomb. Not surprisingly, officials at TWA and Boeing have expressed skepticism that lawyers and their investigators can determine the cause of an accident that has eluded hundreds of government investigators, who are still at a loss to find an ignition source despite poring over the wreckage for five months. "I just find it very, very curious that we get these detailed legal papers, stating precisely what caused the destruction of Flight 800, from people who concede that their knowledge of this comes from reading the newspapers," said Mark Abels, a spokesman for TWA. Doug Webb, a Boeing spokesman, said, "It is unfortunate that lawsuits have been filed before the completion of the investigation." In a letter sent late last week to its customers, Boeing defended its safety record and said no evidence existed for any of the malfunction theories. Kreindler and other plaintiffs' lawyers say they have an obligation to begin their own independent investigations. Also, under federal law, safety board reports on a crash's likely cause are not admissible in court. That law is intended to shield the agency from being drawn into litigation so that it can fulfill its mission of understanding the cause of a crash to prevent future ones. The agency, which has investigated thousands of airplane crashes, has failed on four occasions to identify an accident's probable cause, a distinct possibility in the Flight 800 case. But even in such cases, claims and lawsuits against airlines, aircraft manufacturers and others with a connection to an aviation disaster have been filed and, like the majority of aviation lawsuits, settled out of court. For example, safety board officials are uncertain about the cause of a 1991 United Airlines crash near Colorado Springs, Colo., that killed all 25 people aboard. Most claims filed by victims' families have been settled, insurance industry officials said. In one case, the scramble to file claims arising out of the Flight 800 disaster has focused on some curious targets. Donald J.Nolan, a Chicago lawyer, has filed a lawsuit on behalf of a passenger's family against TWA, Boeing and Hydro-Aire, a Burbank, Calif., manufacturer of the fuel pumps on the shattered jumbo jet. Nolan's lawsuit is the only one to single out Hydro-Aire, a division of the Crane Company, arguing that one of their fuel pumps "in an unreasonably dangerous condition" triggered the center fuel tank explosion. "We are advised by our experts that there has been a long history of problems with their fuel pumps," Nolan said. "Our experts say that it is a likely cause of ignition." However, Hydro-Aire's pumps on the TWA jet, which were recovered from the ocean in August, passed a battery of tests at the Marshall Space Center in Huntsville, Ala. At the time, safety board officials said they had ruled out those pumps as possible ignition sources. Executives at Hydro-Aire said they were surprised to be named as a defendant in Nolan's lawsuit. "It was sort of like, well, why not just throw them in there, sort of like the kitchen sink," said Raymond Boushie, president of Hydro-Aire. A trial of the Flight 800 lawsuits is probably two years away. And if they go to trial, the most likely forum will be a federal courtroom in Uniondale, N.Y., where most of the suits have been filed. There, depending on which law is applied to the case, a panel of jurors could be presented with sorting out one of the nation's most complex aviation disasters. Thus far, little progress has been made in resolving any Flight 800 lawsuits out of court. The victims' families disagree on the best legal strategy. Some families want to begin the process independently of the federal inquiries. Earlier last week, several French families with financial hardships as a result of the crash asked that TWA reimburse them. "Our response was we would be happy to look at the request with an eye toward making hardship payments against an eventual settlement," Abels said. "But no decision has been made yet." Others, like Mrs. Becker, wonder why lawyers and investigators without access to the evidence could be so sure about the cause."It just seems to me that they are jumping the gun," she said. Mitch F. Baumeister, a Manhattan aviation lawyer who represents about a dozen victims' families, said that he would probably wait to file lawsuits until after government investigators determined a likely cause. But for lawyers who have already filed claims, the specifics of how the fuel tank detonated may be less important than the fact that the airplane exploded. "While the search for the detonator continues, the essence of these lawsuits is to ask why this tank was a bomb," Nolan said.

Copyright 1997
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